In an unsurprising, yet disheartening, ruling, the United States Supreme Court held in NLRB v. Noel Canning that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were invalid because the United States Senate was still “in session.” In the broad sense, this will severely limit President Obama’s or any future president’s ability to evade a Senate filibuster and appoint individuals to fill government agency positions. In the more narrow sense, it not only invalidates President Obama’s NLRB recess appointments but also potentially the decisions those members made that affect workers across the country.
The situation began back in 2012, when President Obama used the recess appointment power to appoint members to the understaffed NLRB. These members had already been nominated, but Senate Republicans refused to permit a Senate-wide vote, instead opting to filibuster the nominees. At the time, a filibuster of presidential appointments required a 60-vote threshold to overcome, a tough challenge in the sharply divided Senate. Since that time, the rule has been changed so that only a simple majority is required for approval of recess appointments. During the winter break, Senate Republicans held pro forma sessions every three days to prevent the body from truly going into recess in order to prevent President Obama recess appointments.
The Supreme Court justices were unanimous in their view that the recess appointments were not valid in this case, but they differed in terms of how they would have applied the recess appointment power correctly. The majority, consisting of Justice Breyer, Justice Kennedy, Justice Ginsburg, Justice Sotomayor, and Justice Kagan, stated that the President had the right to make recess appointments, but not when the Senate considered itself to be “in session.” The Senate had the right to determine when it was still in session. The remaining justices, Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito, agreed with the opinion, but stated that they would have gone further, banning all recess appointments except for when vacancies arose during the recess.
Not only does this ruling throw existing NLRB decisions into jeopardy, but it also could complicate things in the following years if the Senate is taken by the opposition party. Currently, the narrow majority held by the President’s party means that he could appoint new members of the NLRB and have them confirmed. However, in the future, he or a successor might not have that opportunity if the Senate changes hands. Then, if the President cannot fill vacancies during Senate recesses, agencies like the NLRB will again be woefully understaffed and unable to serve the vulnerable workers who most need its support. That would be a victory for big corporate employers across the country.
Miller & Falkner is an Indiana and Kentucky plaintiffs law firm serving residents of Kentucky and Indiana. Located in Louisville, Kentucky, the firm provides representation in the areas of personal injury and employment law. If you need a Kentucky or Indiana labor law attorney, contact us today for a free consultation.